BOEHM, Justice.
William Wise was convicted of the murder of his seven-week-old son Matthew and
of arson as a Class A felony. He was sentenced to consecutive terms of sixty years for

murder and fifty years for arson. In this direct appeal he contends that (1) he was denied a
fair trial because of the trial court's rulings on the admissibility of certain evidence; (2) there
was insufficient evidence to support giving an instruction on accomplice liability; (3) the
prosecutor engaged in misconduct by objecting to the admission of evidence found in the fire
debris; (4) the constitutional guarantee against unreasonable searches and seizures was
violated when insurance company personnel searched his home without a warrant; and (5)
there is insufficient evidence to support his convictions. Although we affirm the trial court
on these issues, we reduce Wise's conviction for arson as a Class A felony to a Class B
felony because the same evidence used by the jury to establish the essential elements of
murder was also included among the evidence establishing the essential elements of arson
as a Class A felony
.

Factual and Procedural Background

William and Michelle Wise were married in July of 1992, two months after learning
that Michelle was pregnant with Wise's child. Michelle delivered a baby boy, Matthew, on
January 15, 1993. The three resided in a home with a central alarm system connected to
smoke detectors and a burglar alarm. Matthew's nursery was on the second floor and the
Wises' bedroom was on the ground level. A baby monitor was located under Matthew's bed
and the Wises were able to hear Matthew crying through a portable receiver.
At about 2:00 a.m. on March 6, 1993, the Wises awoke to the sound of Matthew
crying. Wise went upstairs to feed the baby and remained upstairs on the sofa afterward.
Sometime between 4:30 and 5:00 a.m., Michelle went upstairs where she found Wise asleep

on the sofa. She spoke to him for about ten minutes and then started downstairs. Although
Michelle did not see or smell any smoke, the alarm went off as she approached the stairway.
The alarm had gone off previously when there was no fire. Wise went down the stairway
to check the main control panel and Michelle followed. After checking another control panel
located in the downstairs foyer, the Wises observed smoke coming from the upper level of
the home. Wise then returned upstairs to get a cordless phone but did not go down the
hallway to Matthew's room. Instead, he brought the phone downstairs, attempted to call
911, but told Michelle that the phone was not working. Wise asked Michelle to go to a
neighbor's house to call 911, and stated that he would get Matthew. Michelle called 911
from a neighbor's home at 5:09 a.m., and Wise called 911 from another neighbor's house at
5:10 a.m. Michelle did not tell the 911 operator that Matthew was in the house, but Wise
did state that [t]he baby was upstairs.
In his statement to police, Wise reported that before calling 911 he had made it to the
hallway outside of Matthew's bedroom but was forced to turn back because he was having
problems breathing. However, Indianapolis police officer Keith Williams arrived within
ninety seconds of the dispatch and found Wise standing in the doorway. Wise, who had
previously received fire training and was employed at the time as a fire/EMS dispatcher, was
clad in firefighter's clothing (helmet, jacket, and boots) and told Williams that he was with
the Indianapolis Fire Department. Williams believed that Wise had not been in the house
because he was not coughing and did not have any soot on his face. Although Wise told
Williams that there was a baby in the house, he did not mention that the child was his or

indicate that he had attempted a rescue. At Williams' suggestion, the two men entered the
house. They went up the stairs and turned left towards Matthew's room. Williams, who was
not wearing fire gear, was overwhelmed by smoke and backed out of the house. Firefighters
arrived as Williams was exiting, and Wise collided with one firefighter near the top of the
stairs. The firefighters went to Matthew's room and extinguished the fire with a two to three
second blast of a firehose at 5:16 a.m. The contents of the room were completely burned so
that nothing stood more than six inches above the floor. After searching through the rubble
by hand, a firefighter discovered Matthew's body.
Matthew's entire body, except for a portion of the groin area, was severely charred.
Major portions of his arms and legs had been burned away, and the remaining underlying
soft tissues were exposed. The pathologist opined that such injuries could not have been
caused by a non-accelerated fire of fifteen to twenty minutes in duration. David Lepper, an
Indianapolis Fire Department investigator, examined the remains of Matthew's room and
concluded that the fire was intentionally set. James Finnerman, an electrical engineer, ruled
out several accidental causes and also concluded that the fire had been intentionally set.
Nearly a year after the fire, Wise was charged with murder, felony murder, and arson
as a Class A felony. After a two week trial a jury convicted him of all counts. The trial
court merged the murder and felony murder convictions and sentenced Wise to consecutive
terms of sixty years for murder and fifty years for arson.

I. Denial of a Fair Trial

Wise contends that he was denied a fair trial based on three rulings by the trial court.

First, the trial court admitted a videotape of the burning of a test room. Second, the judge
ruled inadmissible evidence of the fire-starting capacity of baby monitors other than the
specific Fisher Price model that had been in Matthew's room. Third, the trial court admitted
testimony that Wise and Michelle had discussed the prospect of an abortion weeks before
their marriage.
A. Demonstrative Evidence
State's exhibits 47 and 55 were videotapes of a test room similar to Matthew's room
that was burnt by an independent laboratory. The State asked fire investigator Lepper if
there was any way to illustrate his testimony about the rapid burning, the total destruction
of the room, point of origin, V patterns, is there anything else that you have that could
illustrate that in a way other than State's Exhibit Number 55, or as well? Lepper responded
no. The exhibits were then admitted, over Wise's objection, as demonstrative exhibits only.
Demonstrative evidence is evidence offered for purposes of illustration and
clarification. See Null v. State, 690 N.E.2d 758, 761 (Ind. Ct. App. 1998) (citing Underly
v. Advance Mach. Co., 605 N.E.2d 1186, 1195 (Ind. Ct. App. 1993)). To be admissible, the
evidence need only be sufficiently explanatory or illustrative of relevant testimony to be of
potential help to the trier of fact. Id. The admissibility of demonstrative evidence, like all
evidence, is also subject to the balancing of probative value against the danger of unfair
prejudice. See Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999); Ind. Evidence Rule 403.
Wise's argument focuses on the differences between the test room and Matthew's
room. He contends that although the test room emulate[d] Matthew's room in all the

emotional senses, [it] failed to duplicate the actual room in all the practical senses, such as
ventilation, materials used to construct the walls, the use of new furniture instead of antique
furniture, and the lack of insulation and roofing. These concerns would be valid if the
exhibits had been offered as reconstructive evidence. See Underly, 605 N.E.2d at 1195
(defining reconstructive evidence as evidence offered to recreate conditions substantially
similar to those existing at the time of the issue being litigated). However, the videotapes
were admitted for demonstrative purposes only and the jury was admonished to consider
them solely for that purpose. Because the exhibits explained and illustrated Lepper's
testimony in a way that was potentially helpful to the jury, they were properly admitted as
demonstrative evidence.
Wise also contends that the exhibits should have been excluded under Evidence Rule
403 because the videotape spent a considerable amount of time showing how wonderful,
warm and comfortable the room looked like, especially concentration on those decorations
in the room which made it a nursery. Rule 403 mandates the exclusion of evidence when
its probative value is substantially outweighed by the danger of unfair prejudice. Trial
courts are given wide latitude in balancing these concerns, and we review their determination
for an abuse of discretion. See Ingram v. State, 715 N.E.2d 405, 408 (Ind. 1999). As
explained above, the exhibits offered probative value by illustrating Lepper's testimony. The
trial court was within its discretion in concluding that any danger of unfair prejudice arising
out of the inclusion of stuffed animals, baby shoes, or a doll in the crib of the test room did
not substantially outweigh the probative value of these exhibits.

B. Exclusion of Evidence Regarding Other Baby Monitors
A Fisher Price model 1510 baby monitor was in the Wises' home. Wise contends that
the trial court erred by excluding as irrelevant evidence that other brands of baby monitors
could cause fires. Relevant evidence is evidence that tends to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence. Ind. Evidence Rule 401. We review a trial court's
ruling as to relevance for an abuse of discretion. See Willsey v. State, 698 N.E.2d 784, 793
(Ind. 1998) (citing Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997)).
Wise's argument focuses on the fire hazard potential of both baby monitors and step-
down transformers used to reduce the voltage from 120 volt house current to nine volts for
baby monitors. He contends that the State opened the door to this testimony when one of its
witnesses testified that the transformer used with the Wises' monitor was similar to those
used in other electrical devices, but that he had never seen one generate the amount of heat
necessary to ignite the plastic housing of a device. The trial court permitted testimony that
the transformer used with the baby monitor and other appliances could have caused a fire.
It also allowed Wise to cross-examine the State's witnesses and offer his own expert
testimony that the Fisher Price 1510 and the step-down transformer in Matthew's room could
have caused the fire. The only limitation imposed by the trial court excluded evidence that
a different make and model of baby monitor (the Gerry 602 or 603) had been known to cause
fires. There was a dispute whether the Fisher Price 1510 and the Gerry 600 series had
similar parts. Under these circumstances the trial court did not abuse its discretion by

determining that evidence relating to other brands of baby monitors was irrelevant to the
charges against Wise.
C. Abortion Testimony Wise also contends that the trial court erred in allowing testimony recounting his
premarital discussions with Michelle of the possibility of an abortion. The couple ultimately
decided to marry, she chose not to have an abortion, and Matthew was born. Wise sought
to exclude this testimony through a motion in limine, but the trial court ruled it admissible,
reasoning that the evidence was offered to establish motive and finding the evidence both
relevant and surviving the balancing test of Evidence Rule 403.
A ruling on a motion in limine does not preserve an error for appellate review unless
the party objects contemporaneously with the introduction of the evidence at trial. See White
v. State, 687 N.E.2d 178, 179 (Ind. 1997) (citing Poulton v. State, 666 N.E.2d 390, 393
(Ind.1996); Ind. Trial Rule 46). A contemporaneous objection allows the trial court an
opportunity to make a final ruling on the matter in the context in which the evidence is
introduced. See White, 687 N.E.2d at 179 (citing Clausen v. State, 622 N.E.2d 925, 927-28
(Ind.1993)). Because Wise did not object at trial to this testimony at trial, any claim of error
is waived.See footnote
1

II. Accomplice Liability Instruction

Wise next argues that the trial court erred by instructing the jury on accomplice
liability. He contends that (1) there was no evidence to support the instruction and (2) he
was charged as a principal and not given notice until days before trial of the State's theory
that he may have been an accomplice to his wife's actions.
The accomplice liability statute provides in relevant part that [a] person who
knowingly or intentionally aids, induces, or causes another person to commit an offense
commits that offense, even if the other person: (1) has not been prosecuted for the offense
. . . . Ind. Code § 35-41-2-4 (1998). In Indiana there is no distinction between the
responsibility of a principal and an accomplice. See Whittle v. State, 542 N.E.2d 981, 991
(Ind. 1989), overruled on other grounds by Scisney v. State, 701 N.E.2d 847 (Ind. 1998).
Thus, one may be charged as a principal yet convicted on proof that he or she aided another
in the commission of a crime. See id.; Hoskins v. State, 441 N.E.2d 419, 425 (Ind. 1982).
If there is some evidence that a second party was involved in the crime, an instruction on
accomplice liability is proper. See Dorsey v. State, 490 N.E.2d 260, 267 (Ind. 1986),
overruled on other grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995); Burdine v.
State, 477 N.E.2d 544, 547 (Ind. 1985).
There is sufficient evidence of Michelle's possible involvement in the crimes to

warrant an instruction on accomplice liability in this case. Wise, Michelle, and Matthew
were the only people in the house on the morning of the fire. In a deposition given to an
attorney for his insurance company and admitted at trial, Wise stated that shortly before the
fire he went to the bathroom and then lay down on the sofa. As he was going back to sleep,
Michelle came up the stairs. When asked if she woke him up or he heard her coming up the
stairs, Wise replied, [I]t startled me, you know, when she -- kind of a there's somebody
standing in front of me thing. In his statement to police Wise reported that Michelle had
come upstairs to make sure that Matthew had been put back to bed, but when asked if she
had checked on Matthew he replied not that I know of, no. In addition, Michelle's trial
testimony placed her upstairs, on the sofa with Wise, at about 5:00 a.m. They talked for
about ten minutes, the alarm went off and both went downstairs to check the control panels.
Neither went to check on seven-week-old Matthew. Moreover, after checking both control
panels they noticed smoke coming from upstairs, but neither went to Matthew's room, even
though Wise did go upstairs to get a cordless phone. Because the phone was inoperable, he
told Michelle to go to a neighbor's house to call 911. Although she called 911, she did not
mention that a person _ let alone her own seven-week-old child _ was trapped in the house.
Finally, the State points to testimony about a conversation Wise and Michelle had with an
attorney approximately a month after the fire about the possibility of recovering a million
dollars from the manufacturer of the allegedly defective baby monitor. Indeed, the Wises
had a civil suit pending against the manufacturer at the time of Wise's murder trial.
In sum, evidence admitted at trial established that Michelle was at least upstairs, if not

in Matthew's room, ten minutes before and at the time the fire alarm sounded. Investigators
testified that the fire was intentionally set. If the jury credited this testimony, they could
have believed that the fire was started by either Wise or Michelle. Michelle's post-alarm
conduct also raises questions about her potential involvement. There was sufficient evidence
to support giving an instruction on accomplice liability. Cf. Dorsey, 490 N.E.2d at 267-68
(evidence that two people were seen exiting burglary victim's house and also seen in the
getaway car sufficient to warrant giving instruction on accomplice liability).
We also reject Wise's contention that the giving of this instruction offended his due
process right to notice of the charges against him.See footnote
2 This Court has held that no reference to
the accomplice liability statute need be included in the charging information in order for a
defendant to be convicted of a crime, regardless of whether the evidence showed that he or
she acted alone or with an accomplice. See Taylor v. State, 495 N.E.2d 710, 713 (Ind.
1986); see also Ozuna v. State, 703 N.E.2d 1093, 1100 (Ind. Ct. App. 1998) (rejecting
contention that due process requires that the State give a defendant some pretrial notice that
it intended to try him as an accessory rather than as a principal).

III. Prosecutorial Misconduct

Wise asserts that the State engaged in prosecutorial misconduct when it challenged
the admissibility of photographs of a partially melted bottle of isopropyl alcohol found in his
house. He argues that the fact the bottle survived the fire was important to disprove the

State's theory that the fire had been started by alcohol. The bottle was eventually admitted
into evidence after a proper foundation was laid.
A claim of prosecutorial misconduct requires a showing that there was misconduct
by the prosecutor and that it had a probable persuasive effect on the jury's verdict. Cox v.
State, 696 N.E.2d 853, 859 (Ind. 1998). Wise has demonstrated neither. It is not misconduct
to make a valid objection to the lack of the necessary foundation for the admissibility of an
exhibit. This is true even if the exhibit was admitted into evidence without objection at an
earlier trial. Moreover, because the exhibit was ultimately admitted into evidence and
Wise's expert was allowed to offer his opinion that the bottle was standing upright and
nearly full of liquid at the time of the fire, we fail to see how the State's foundational
objection could have affected the jury's verdict.

IV. Denial of Motion to Suppress

Wise argues that insurance investigators, acting in concert with the police, illegally
searched his residence without a warrant. Wise unsuccessfully moved to suppress all
evidence obtained from the search on this ground. Wise points to no evidence admitted at
trial as the result of this search nor does he provide any citation to the record of any
objections made at trial to the admission of evidence from this allegedly illegal search.
There was apparently no evidence improperly admitted and even if there were, his failure to
make a contemporaneous objection at trial results in waiver of his suppression claim. See
Goudy v. State, 689 N.E.2d 686, 692 (Ind. 1997).
Waiver notwithstanding, Wise's argument also fails on its merits. Although a

governmental investigatory agency cannot do through an insurance company or other private
agency what it could not do itself, see Maciejack v. State, 273 Ind. 408, 414, 404 N.E.2d 7,
10-11 (1980), there is no evidence here of an agreement between the police and the insurance
company to have the latter perform the functions of the former. Rather, the police officers
testified at the suppression hearing that they accompanied the insurance company
investigators to the Wise home merely to keep the property safe and ensure that insurance
company personnel did not compromise anything that might be needed in the police's future
investigation. Moreover, although Indiana Code § 27-2-13-2 requires insurance companies,
when asked in writing, to disclose information or evidence obtained through their
investigation of the fire to the police, this statute does not ipso facto transform the agents of
the insurance company into agents of the state subject to the warrant requirements of the
state and federal constitutions. Cf. Gajdos v. State, 462 N.E.2d 1017, 1020-21 (Ind. 1984)
(Private persons acting solely on their own and for whatever purpose may conduct a search
and seizure and turn the fruits over to the authorities, and the authorities may initiate a
prosecution on that evidence.) (quoting John Wesley Hall, Jr., Search and Seizure § 3.4
(1982)); Maciejack, 273 Ind. at 414, 404 N.E.2d at 10 (The search was conducted by the
investigator for the insurance company, who was not a government agent. Accordingly, the
illegal fruits doctrine is inapplicable.).

V. Sufficiency of the Evidence

Wise also contends that there is insufficient evidence to support his convictions for
arson and murder. Wise is correct that the State has the burden of showing the fire was from

other than accidental causes and absent such a showing the fire will be presumed to be
accidental. See Ellis v. State, 252 Ind. 472, 477, 250 N.E.2d 364, 366 (1969)
, overruled on
other grounds by DeVaney v. State, 259 Ind. 483, 489-90, 288 N.E.2d 732, 736-37 (1972)
.
The jury was properly instructed on this point and found him guilty of arson and murder.
As this Court observed in Barton v. State, 490 N.E.2d 317, 318 (Ind. 1986), [a]rson
is almost always subject to proof only by circumstantial evidence, and . . . we defer to the
jury's determination that [the defendant] set the fire. As is true of any sufficiency claim,
we neither reweigh the evidence nor judge the credibility of witnesses. Rather, we look only
to the evidence that supports the verdict and the reasonable inferences drawn therefrom and
will affirm the conviction if there is sufficient evidence of probative value from which a
reasonable jury could find the defendant guilty beyond a reasonable doubt. Collins v. State,
464 N.E.2d 1286, 1288 (Ind. 1984).
The pathologist testified that in his opinion a non-accelerated or accidental fire of
fifteen to twenty minutes in duration could not have caused the type of injuries sustained by
Matthew. Fire investigator Lepper also opined that the fire was intentionally set. He based
his conclusion on several factors including (1) the fire burned too fast for its fuel load; (2)
there was total destruction of everything in the room; (3) the floor level burning occurred
under and outward from the baseboard, which was inconsistent with a fire emanating from
the electrical outlet twelve to eighteen inches above the baseboard; and (4) his finding of
isopropyl alcohol, an accelerant, in the carpeting of Matthew's room. Finnerman, an
electrical engineer who was the assistant laboratory manager at a company that investigates

the origin and causes of fires, also concluded that the fire was intentionally set. He testified
that based on the floor level destruction he believed that a liquid accelerant had been poured
in the room and ignited. In addition, he ruled out the brand of baby monitor used in
Matthew's room and the step-down transformer that attached it to the wall as potential
causes of the fire. There is sufficient evidence to support the jury's conclusion that the fire
was not accidental, and that Wise was at least an accomplice if not a principal.

VI. Prohibition Against Multiple Punishments

As a final point we consider whether Wise's conviction for arson as a Class A felony
and his murder conviction are both supported by this record. Arson as a Class B felony is
enhanced to a Class A felony if the fire results in either bodily injury or serious bodily
injury to any person other than a defendant. Ind. Code § 35-43-1-1(a) (1998). Accordingly,
the jury was instructed that to convict Wise of arson as a Class A felony the State must prove
beyond a reasonable doubt that Wise knowingly started a fire that resulted in serious bodily
injury to Matthew D. Wise; that is: mortal carbon monoxide poisoning and burns. The trial
court recognized the then unclear state of the law on this issue, and elected to sustain
convictions for both murder and arson as a Class A felony.See footnote
3 As this Court recently held in

Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999), dual convictions cannot stand if a
defendant demonstrate[s] a reasonable possibility that the evidentiary facts used by the fact-
finder to establish elements of one offense may also have been used to establish the essential
elements of a second challenged offense. Here, the same evidence used by the jury to
establish the essential elements of murder was also included among the evidence establishing
the essential elements of arson as a Class A felony, and the two cannot stand. Cf. Chapman
v. State, ___ N.E.2d ___, ___ (Ind. 1999). Accordingly, we remand this case to the trial
court to reduce Wise's arson conviction to a Class B felony and impose a sentence of twenty
years imprisonment on that count.See footnote
4

Conclusion

William Wise's conviction for murder is affirmed. This case is remanded to the trial
court with instructions to reduce his conviction for arson as a Class A felony to a Class B
felony and impose a twenty-year sentence on that count to run consecutive to the sixty-year
sentence for murder.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.

Footnote: 1 Wise responds to the State's waiver argument in his reply brief by asserting that [t]he judge
made it clear what her ruling was and that the record for purposes of appeal had been preserved. . . . The
trial attorney should be able to rely upon the representation of the trial judge that no further objections will
be worthwhile. The record citations provided, however, do not support this argument. The trial court
observed at a pretrial conference that abortion would likely be an issue to be discussed during voir dire,
issued an order stating its pretrial ruling on the issue, and in response to an inquiry from defense counsel
reiterated that its ruling was based on Evidence Rule 403 and not 404(b). The trial court did not tell
defense counsel that the record was preserved for purposes of appeal or otherwise intimate that an objection

at trial was unnecessary. Moreover, although we believe that this testimony was potentially prejudicial and
offered little probative value, we reject Wise's claim, raised for the first time in his reply brief, that
admission of this testimony was fundamental error. See Barany v. State, 658 N.E.2d 60, 64 (Ind.1995)
(error is "fundamental" if it is so prejudicial to the rights of the defendant that it makes a fair trial
impossible).

Footnote: 2 The State's desire to seek an instruction on accomplice liability was explicitly made known at a
pretrial conference days before trial at which time the trial court deferred ruling on the issue until the
conclusion of evidence at trial.Footnote: 3 The trial court relied on this Court's opinion in Games v. State, 684 N.E.2d 466 (1997), reh'g
granted in part, 690 N.E.2d 211 (1997), cert. denied, 119 S. Ct. 98 (1998), which evaluated a double
jeopardy claim using the same elements test of Blockburger v. United States, 284 U.S. 299, 304 (1932).
The trial court observed that the factual analysis previously required by the Indiana Supreme Court is not
required in this case, other than to look at the elements of the two crimes, and there are elements contained
in each crime that the other does not contain. It concluded that the Indiana Constitution provides no
greater protection against multiple punishments than the federal constitutional protection embodied in
Blockburger. This view was quite reasonable under our decisions at the time, but requires revision in light
of Richardson v. State, 717 N.E.2d 32 (Ind. 1999).Footnote: 4 The trial court sentenced Wise to maximum and consecutive terms for the two counts. It also
state[d] for the record, if I'm wrong on the effect of Games . . . [and the arson count] is reduced to a B
[felony] by a higher Court, I think the maximum sentence on that would be appropriate as well. In light of
this statement, there is no reason to remand this case for a new sentencing hearing.